C. BRUCE BATTEN
COMMUNITY TRUST AND BANKING COMPANY, ET AL.
Session December 5, 2018
from the Circuit Court for Hamilton County No. 10C366 Ward
Jeffrey Hollingsworth, Judge
appeal arises from the trial court's reconsideration and
granting of summary judgment motions that had initially been
denied by another judge. We affirm the judgment of the trial
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
P. Konvalinka and Thomas M. Gautreaux, Chattanooga,
Tennessee, for the appellant, C. Bruce Batten.
R. Patrick and Susie Lodico, Chattanooga, Tennessee, for the
appellee, Community Trust and Banking Company.
S. Napolitan and M. Andrew Pippenger, Chattanooga, Tennessee,
for the appellee, Kathryn Reed Edge.
W. McClarty, J., delivered the opinion of the Court, in which
D. Michael Swiney, C.J., joined, and J.
W. McCLARTY, JUDGE.
2001, Community Trust and Banking Company ("Bank"),
hired C. Bruce Batten to be its CEO and president. Under
Section 3 of his employment agreement, Batten's base
salary was set at $144, 754 per year. Under that same
section, Batten was to receive the following: benefits under
or participate in stock options, retirement plans,
supplemental retirement plans, pension plans, profit sharing
plans, health and accident plans, medical coverage or any
other employee benefit plan offered by Bank; medical
coverage, bonuses, reimbursement for travel and entertainment
expenses; reimbursement for cellular phone; an automobile
allowance of $500 per month; and reimbursement for all
non-use dues at The Mountain City Club.
employment agreement required Batten to devote all his time,
effort, and skill to the "organization, operation and
management" of Bank. Batten acknowledged being
ultimately responsible for overseeing loans and deposits,
directing bank marketing activities, "setting loan and
interest rates," and creating an incentive plan for
getting new loans. In addition to these types of
responsibilities, Batten also took it upon himself to
"implement" and "develop" other specific
job duties, including "picking up paper in the parking
lot . . . every morning," "changing light
bulbs," "routinely" using his truck to
"pick up . . . broken furniture" at Bank's
branch locations, clearing and then spreading straw on
parcels of property owned by Bank with his tractor and
trailer, and "routinely us[ing] his storage space . . .
to store [excess] bank records . . . ." Additionally,
Batten had Bank buy several grills and smokers during his
tenure, culminating in the purchase of a $15, 000 smoker that
Batten described as a "very unique micro marketing
tool" and "the most successful use of marketing
dollars" while he was at Bank. The record reveals that
Batten would smoke turkeys for customers and provide them
Bank-purchased beer to drink while they watched him cook at
his or "other people's" homes. He admitted
that some of these activities were "not typically . . .
in the purview of someone's duties and responsibilities
as the president and CEO" of a bank. Batten claimed,
however, that his actions benefitted Bank and did not impair
his job performance. Bank would eventually charge that Batten
had shirked or delegated his administrative duties because
such actions strayed from the administration of the financial
any problems arose for the parties, Batten and Bank had
entered into an amended and restated employment agreement in
May 2005. Under its terms, Batten was entitled to voluntarily
terminate his employment with Bank by providing sixty
days' prior written notice:
PAYMENTS TO BATTEN UPON TERMINATION.
Batten may terminate his employment under this agreement by
resignation upon not less than sixty (60) days prior written
notice to the Bank. The Bank shall pay Batten his then
current Base Salary and provide all of the benefits provided
in Section 3 until the effective date of his resignation and
for thirty-six (36) months thereafter. The Bank shall have
the right to terminate Batten's employment under this
Agreement by giving Batten sixty (60) days prior written
notice. If the Bank elects to give notice to Batten of
termination of his employment under this Agreement, for
thirty-six (36) months after the effective date of such
termination, the Bank shall pay Batten his then current Base
Salary and provide all of the benefits provided in Section 3.
employment agreement included no outside criteria, standards,
2009, the Tennessee Department of Financial Institutions
("TDFI") initiated an examination of Bank. When
TDFI completed its report, Batten and other Bank executives
attended an "exit meeting" with the examiners on
October 22, 2009. During the meeting, TDFI announced that the
quality of Bank's assets had "significantly
deteriorated" since its last examination; its earnings
were "deficient;" its risk management practices
were "inadequate;" its capital levels had
"significantly decreased;" its management had
committed "significant . . . violations [or]
contraventions" of law; and its overall condition had
"deteriorated." TDFI specifically discussed the
component and composite ratings that it had assigned to Bank.
In the first three quarters of 2009, Bank had posted losses
of $1, 176, 000. Batten did not disagree with TDFI's
appraisal of Bank or the majority of TDFI's conclusions.
He now asserts, however, that although Bank struggled for a
portion of the time that he served as president and CEO, the
financial troubles could not all be blamed on him. He would
note that the financial industry as a whole sustained
historic losses and that many banks across the country failed
completely. After the exit meeting, Batten signed a document
certifying that he would help develop plans to address the
numerous deficiencies identified by TDFI.
November 2, 2009, Bank retained Kathryn Reed Edge, an
attorney with the firm that represented Bank, to perform
legal services in connection with TDFI's
examination. Batten, as president of Bank, signed
Edge's engagement letter. Six days later, Edge prepared a
"confidential Memorandum" for Bank in which she
summarized and addressed the information provided by TDFI at
the exit meeting. She noted that the following composite
CAMELS ratings were being recommended by TDFI:
Capital Adequacy "3" Asset quality "4"
early part of December 2009, Edge participated in meetings
with TDFI and Bank's Board of Directors in order to
discuss the findings of the examination report and Bank's
financial condition. On December 7, 2009, she prepared a
letter to TDFI's Commissioner, in which she acknowledged
the nature of the various ratings that had been
"assigned" to Bank. During this time period, Edge
addressed with Batten the possibility that Bank might receive
some type of formal supervisory action from TDFI.
apparently became concerned about his future with Bank. He
met privately with Edge to talk about his possible
resignation and discussed with her a provision in the
employment agreement that allowed Bank to terminate him
"for cause." Because such an action by Bank would
affect his right to receive severance payments, Batten
questioned Edge as to whether Bank "could use" its
current situation to terminate him "for cause"
under the agreement.
to Batten, he specifically asked Edge if she was aware of any
reason why he might not receive his severance benefits, and
she replied that she was not aware of anything that would
result in the severance not being paid. He claims that Edge
never disclosed to him that, due to the findings of TDFI,
Bank would certainly be assigned a composite CAMELS score of
4; that, when a financial institution is assigned a CAMELS
score of 4, pursuant to applicable federal regulations, it
constitutes a troubled condition; and that such a bank is
barred from making payments that constitute golden
parachutes. Batten argues that Edge never informed him that
his severance package could be considered a golden parachute.
He claims that during their discussions, Edge advised him to
tender his notice of termination to Bank in December 2009, as
opposed to waiting, so that Batten would not be listed as CEO
in Bank's upcoming capital circular.
his conversations with Edge, Batten decided to voluntarily
resign from Bank. Although Edge did not personally represent
him, Batten asked her to compose his notice of termination.
She forwarded a proposed draft to him by email with the
Corky, I think this meets the requirements for notice under
your employment agreement. Feel free to change it, but you
may not want to be too specific about why you are tendering
your resignation when you are. You may want to consult your
own counsel about this, as well, as we discussed. What the
Bank will want you to sign is a separation agreement that
sets out what they are paying you and providing certain
releases. This is customary and for both your protection and
the Bank's. When you are ready to deliver this to Ken
Hamilton, I can draw up that agreement for the bank.
Until you tell me you are ready to deliver this, I won't
talk to anyone about this, but we cannot wait long because we
must amend the offering circular and prepare for management
transition before we start talking to investors. I will need
to talk with Greg and Ken Hamilton sooner than later.
I know how hard this is for you. Thank you for calling me
about it. I hope the conversation helped you.
his review, Batten requested that Edge add a sentence about
his need to stop working because of his health, claiming that
the work-related stress was affecting him and, also, that he
was not physically capable of doing his job any longer. The
revised notice provided, in part, as follows:
I have determined, after much debate and upon consultation
with my health care provider, that the stressful and
challenging position I hold at the Bank is contributing to my
deteriorating health and that it is in my best interest and
the best interest of my family that I tender my resignation.
later deposition, Batten testified that he "couldn't
deal with the stress" - "mentally or physical"
- of running Bank. He asserted that his health was
deteriorating so much that it impaired his ability to work at
tendered the resignation letter on the morning of December
21, 2009. He offered to help smooth the transition to the
next CEO and requested that Bank pay him three-years'
worth of contractual severance pay:
Pursuant to Section 4, Payments to Batten upon Termination,
of my Amended and Restated Employment Agreement dated May 23,
2005, I may terminate my employment under the Employment
Agreement by resigning upon not less than 60 days prior
written notice to the Bank. The Bank is obligated to pay me
my "then current Base Salary and provide all of the
benefits provided in Section 3 [of the Employment Agreement]
until the effective date of my resignation and for thirty-six
(36) months thereafter."
the notice was received, Bank placed Batten on medical leave,
blocked his access to his email account and computer, and
changed the locks on the building where he had worked. In
response to Bank's actions, Batten's counsel
thereafter sent a letter to Edge demanding assurances that
Bank intended to perform its obligations relative to the
mid-January 2010, during the 60-day period following
Batten's resignation notice, TDFI sent Bank the final
version of its report. Regulators concluded that Bank was an
"unsound," "deficient," and
"ineffectively" managed financial institution.
Around a month later, Bank received a letter from the Federal
Deposit Insurance Corporation ("FDIC"), stating
that Bank was officially in a "troubled
condition"pursuant to federal law. FDIC informed
Bank that, among other restrictions, it could not make any
"golden parachute payment or excess nondiscriminatory
severance plan payment" to any officer or director
without FDIC authorization. On February 19, 2010, Edge's
law firm sent a letter to Batten stating that Bank would not
"presently" tender the post-termination
compensation. Thereafter, on March 10, 2010, Batten filed his
complaint against Bank and Edge personally, alleging claims
for breach of contract and quantum meruit/unjust enrichment.
He subsequently amended his complaint to assert a claim for
negligence against Edge.
regulations allow a financial institution that is in a
troubled condition and IAPs [institution-affiliated
parties] like Batten to request permission to
make otherwise prohibited golden parachute payments. 12
C.F.R. §§359.0(b), 359.4(a)(1), (4), 359.6. On May
16, 2011, Bank's president at the time sent a letter to
FDIC inquiring whether the entity would allow payment of the
severance benefits to Batten. Bank represented to FDIC that,
"Community Trust does not believe that the approximately
$600, 000 that would be paid to Batten qualifies as deferred
compensation. The payment being requested would not have been
compensation that would have been payable to Mr. Batten
during the course of his employment and thus cannot be
qualified as "deferred compensation." According to
Batten, this statement was directly contrary to the terms of
the employment agreement, noting the fact that Bank set up
the Deferred Compensation Account, contributed to it on a
monthly basis, accrued a liability on its financial
statements relative to the payment of the severance benefits,
and specifically characterized the severance benefits as
deferred compensation on its financial records. On June 24,
2011, FDIC responded to Bank that, "based upon the
information provided," it appeared that the severance
benefits do not "fit any type of plan described in the
regulation, and that the payment would qualify as a
"golden parachute." FDIC further informed Bank that
it would need to get its consent before making the payment.
did not make such a request to FDIC pursuant to 12 C.F.R.
§ 359.4(a)(4) until August 2, 2012, over two and a half
years after Batten's resignation. In its August 2, 2012
letter, Bank stated that it "is unable to make the
certifications required by 12 C.F.R. § 359.4(4)(i)
through (iv) or advocate for consent to make the payment due
to our belief that Batten's performance as CEO and
President did cause him to be substantially responsible for
Community Trust's troubled condition." According to
Bank, it had learned that Batten had established lending
policies that negatively implicated numerous federal and
state laws, incentivized the extension of excessive loans,
and participated in questionable self-dealing with Bank
insiders. On August 14, 2012, FDIC responded to
Bank's August 12 letter, and requested that Bank provide
the certifications required under section 359.4(a)(4) by
August 27, 2012. When Bank failed to comply with FDIC's
demands, on August 30, 2012, FDIC sent correspondence
advising that Bank's request was deemed
Bank's Rule 30.02(6) representative had testified on
July 16, 2010, that Bank was not claiming Batten had been
terminated for cause, on April 26, 2012, Bank's Board of
Directors voted to retroactively terminate Batten's
employment, effective February 20, 2010:
WHEREAS, the Company has recently completed its written
discovery responses, required by the Litigation, and has
recently reviewed all documents related to Batten's
performance as CEO and President of the Company from May 30,
2001 through his resignation on December 21, 2009;
WHEREAS, upon careful review of the above-referenced
documents, the Board finds, in its good faith opinion, that
Batten was guilty of conduct justifying termination for
Cause, within the meaning of the Employment Agreement, based
on the following reasons: Batten is guilty of personal
dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, willful failure to
perform stated duties as defined by the Board's and the
Company's policies, willful violation of the laws, rules
and regulations as described in [TDFI]'s Examination
Report for the examination beginning October 5, 2009 which
materially and negatively affected the Company. The Board
further finds that Batten's behavior was willful, as
defined by the Employment Agreement, in that it demonstrated
an intentional or reckless disregard for the duties and
responsibilities he owed to the business of the Company. It
RESOLVED, that Batten shall be terminated for Cause pursuant
to Section 7 of the Employment Agreement effective as of
February 20, 2010, and that Batten shall not have the right
to receive compensation or other benefits after said date;
and, it is,
FURTHER RESOLVED, that the proper officers of the Company are
hereby authorized and directed to take all such action as
they, and any of them, deem necessary or advisable to carry
out the full intent and purpose of the foregoing resolution.
asserts that prior to April 26, 2012, no one informed him
that he had allegedly engaged in illegal or unlawful conduct,
that he had been dishonest or incompetent, that he had
breached his fiduciary duty, or that he had willfully failed
to perform his stated duties as Bank's employee.
According to Batten, at all times, he relied upon Lloyd
Congdon, Bank's Executive Vice President, Senior Leader,
and Senior Credit Officer to ensure that Bank's loans
were legally compliant. Batten stresses that Bank did not
fail under his watch and, in fact, its assets were improving
at the time he resigned. He notes two years of litigation
occurred before Bank began blaming him.
Batten, as an IAP, had standing to seek permission from FDIC
to have Bank make the severance payments, the record does not
reveal any action on his part in this regard. He would have
been required to demonstrate, among other things, that he
"is not aware of any information, evidence, documents or
other materials which would indicate that there is a
reasonable basis to believe, at the time such payment is
proposed to be made" (1) that he committed any
fraudulent act, breach of trust or fiduciary duty, (2) that
he is responsible for the failure of the bank, or (3) that he
has committed a material violation of banking laws and
regulations that has had a material effect on the bank. 12
C.F.R. § 359.4(4); see also 12 U.S.C. §
January 2013, Bank moved for summary judgment. According to
Bank, the enforceability of the employment agreement between
it and Batten was contingent upon continued regulatory
approval of Bank's operations, which ceased when TDFI
concluded its 2009 examination. Bank further argued that
Batten breached the agreement by failing to faithfully
perform his duties under the employment agreement.
Additionally, Bank asserted that the payments sought by
Batten constituted an impermissible golden parachute not
subject to any statutory exceptions. Edge also sought summary
judgment on Batten's negligence claim, arguing that the
alleged misrepresentations about which Batten complained
concerned future matters rather than misstatements of present
trial judge over the case at the time, Jacqueline Bolton,
denied the motions for summary judgment, finding disputed
issues of material fact present. We denied a requested Rule 9
application for an interlocutory appeal.
the case was back before the trial court, Bank filed a motion
for revision on October 1, 2015, under Rule 54.02 of the
Tennessee Rules of Civil Procedure. The trial court accepted
Bank's argument that there had been a change in the law
concerning the summary judgment standard since Judge
Bolton's denial of Bank's original summary judgment
motion. Bank further convinced Judge Jeff Hollingsworth that
the severance package constituted a "golden
parachute" as that term is defined by FDIC regulations,
and, because Bank was considered by FDIC to be a
"troubled institution," it would be illegal for
Bank to pay Batten the sums set forth in the employment
agreement. The trial court, thereafter, reversed the earlier
rulings on the dispositive motions. In its January 4, 2017,
memorandum and order, the court set forth the following
reasons for granting Bank's motion:
Batten cannot prove that the conditions precedent for payment
of the Severance Benefits were met. . . . Paragraph 19
clearly contemplates one condition being the loss of the
Bank's charter . . . and the continued
regulatory approval of the Bank's operations. Wording of
the contract is clear and this Court cannot reconcile the
findings of the [TDFI] and the FDIC with the term
"regulatory approval." Therefore, it is the finding
of the Court that the Bank met its burden on summary judgment
in regard to that provision of the contract. Batten has not
been able to produce evidence to create an issue of fact on
FDIC refused permission to make a payment the FDIC defined as
a "golden parachute." . . . The FDIC told the Bank
that, based on the information it had at the time, it could
not allow the payment. However, if the Bank would make
certain assertions concerning Batten's noninvolvement
with the problems suffered by the Bank, the FDIC might
reconsider. The only way the Bank could have responded to
that would be to make assertions concerning Batten's
noninvolvement, knowing at the time that the assertions were,
at least from the Bank's point of view, not true. This
Court is not aware of any duty the Bank had to make what it
considers untrue statements to the federal agency which
regulates it. In any case, Paragraph 19 clearly states that
the continuation of the agreement was contingent upon
regulatory approval. At the time Batten's resignation
became effective, the Bank did not enjoy regulatory approval.
Finally, it is undisputed that the FDIC informed the Bank
that it was prohibited from making the payments without FDIC
consent. If this Court ordered the Bank to make those
payments, that would be in direct conflict with federal law.
Under these circumstances, federal law preempts. Mr. Batten
may pursue his remedies in the federal system.
regard to Edge, the trial court noted as follows:
As Edge argues in her motion, the misrepresentation, if it
was such, is about a future event. The only misrepresentation
Batten accuses Edge of making is her failure to warn him that
he might lose the Severance Package in Paragraph 4. Edge
argues that, even if that is true, it is a misrepresentation
concerning a future event for which there can be no recovery.
. . . It is clear that, even if Edge's failure to mention
the adverse effects of Batten's resignation was a
misrepresentation, it related to what might happen in the
future. At the time Edge failed to issue the warning Batten
claims should have been made, the report of the TDFI had been
issued. However, it was after his resignation notice that the
FDIC issued its ruling that the Bank was a troubled
institution. It was also after he submitted his resignation
that the FDIC notified the Bank it needed consent to make the
payment. As a matter of law, Batten cannot recover against
Edge for the fact that he did not receive the Severance
the ruling in its favor from the trial court, Bank filed a
motion for attorneys' fees. The trial court granted the
motion over Batten's objection and awarded Bank $294,
965.18. In its memorandum opinion and order entered on
October 27, 2017, the court held that because it granted
Bank's summary judgment motion, "the Bank prevailed
in this litigation" and was entitled to an award of
its' reasonable attorney's fees pursuant to Paragraph
16 of the employment agreement. The court noted that the
"case clearly involved a dispute about the Agreement. .
. ." Batten then filed a timely notice of appeal.
restate the issues raised by Batten in this appeal as
A. Whether it was error to grant the second motion for
summary judgment filed by Edge and the motion for revision
filed by Bank;
B. Whether it was error to limit and/or refuse Batten the
opportunity to obtain information and documents pertaining to
the communications among appellees and FDIC and/or
TDFI, the drafts of Batten's separation agreement
prepared by Edge, and the circumstances and/or preparation of
a financial institution letter by FDIC.
C. Whether it was error to grant the application for
attorney's fees filed by Bank.
issues are restated as follows:
A. Whether the trial court correctly ruled that the condition
of Batten's contract was unsatisfied.
B. Whether Batten demonstrated that the trial court abused
its discretion with respect to any of the discovery rulings.
C. Whether Bank was the prevailing party and the trial court
properly awarded Bank's attorneys' fees under the
issues are restated as follows:
A. Whether the appeal is barred by the law of the case
B. Whether the trial court correctly held that Batten may not
recover for negligent misrepresentation of a future fact.
C. Whether Batten can show that he reasonably or justifiably
relied on anything that Edge told him, as Edge specifically
told him to consult his own attorney.
D. Because Batten resigned due to his health, it does not
matter what, if anything, Edge said to him about the
agreement or the timing of his decision - nothing she said
(or failed to say) caused his alleged harm because he had to
E. Whether Batten may recover for Edge's failure to
disclose information that was readily available to him.
STANDARD OF REVIEW
review the trial court's findings of fact de novo upon
the record. Tenn. R. App. P. 13(3). Those findings are
presumed to be correct unless the evidence preponderates
otherwise. Cracker Barrel Old Country Store, Inc. v.
Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citing Tenn.
R. App. P. 13(d)). We review the trial court's
conclusions of law de novo with no presumption of
correctness. McLarty v. Walker, 307 S.W.3d 254, 257
(Tenn. Ct. App. 2009). We note that contract interpretation
is a question of law. Guiliano v. Cleo, Inc., 995
S.W.2d 88, 95 (Tenn. 1999).
Rye v. Women's Care Center of Memphis, MPLLC,
477 S.W.3d 235 (Tenn. 2015), the Tennessee Supreme Court
articulated the proper standard for summary judgment:
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." Tenn. R. Civ. P. 56.04. We review a trial
court's ruling on a motion for summary judgment de novo,
without a presumption of correctness. Bain v. Wells,
936 W.W.2d 618, 622 (Tenn. 1997); see also Abshure v.
Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 103
(Tenn. 2010). In doing so, we make a fresh determination of
whether the requirements of Rule 56 of the Tennessee Rules of
Civil Procedure have been satisfied. Estate of
Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing
Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 471
(Tenn. 2012)). . . .
Id. at 250.
court's decision regarding "discovery matters will
not be reversed on appeal unless a clear abuse of discretion
is demonstrated." Benton v. Snyder, 825 S.W.2d
409, 416 (Tenn. 1992). An abuse of discretion occurs when the
trial court applies incorrect legal standards, reaches an
illogical conclusion, bases its decision on a clearly
erroneous assessment of the evidence, or employs reasoning
that causes an injustice to the complaining party. State
v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008).
Tennessee Supreme Court has summarized the standard of review
applicable to a trial court's decision regarding a
reasonable attorney's fee as follows:
[A] determination of attorney's fees is within the
discretion of the trial court and will be upheld unless the
trial court abuses its discretion. We presume that the trial
court's discretionary decision is correct, and we
consider the evidence in the light most favorable to the
decision. The abuse of discretion standard does not allow the
appellate court to substitute its judgment for that of the
trial court . . . .
Little v. City of Chattanooga, No.
E2013-00838-COA-R3-CV, 2014 WL 605430, at *3 (Tenn. Ct. App.
Feb. 14, 2014) (citing Wright ex rel. Wright v.
Wright, 337 S.W.3d 166, 176 (Tenn. 2011)).
asserts that the severance benefits do not constitute a
golden parachute payment because they fall squarely within
one or more of the exceptions to the definition of a
"golden parachute" contained in 12 C.F.R. §
359.1(f)(2)(ii), (iii) and (iv). If an exception is deemed
applicable and the severance benefits are not a golden
parachute, then there is no reason to seek approval under the
provisions of 12 C.F.R. § 303.244.
Federal Deposit Insurance Act ("the FDIA")
authorizes FDIC to prescribe regulations pertaining to
insured depository institutions. See 12 U.S.C.
§ 1828. Section 1828(k) empowers FDIC to prohibit
certain payments by financial institutions to executive
officers. The term "golden parachute payment" means
"any payment to a senior executive officer for departure
from a company for any reason, except for payments for
services performed or benefits accrued." 12 U.S.C.
§ 5221(a)(2). FDIC's regulations define a
"golden parachute payment" as follows:
(1) The term golden parachute payment means any payment (or
any agreement to make any payment) in the nature of
compensation by any insured depository institution holding
company for the benefit of any current or former IAP
[Institution-affiliated party] pursuant to an obligation of
such institution or holding company that:
(i) Is contingent on, or by its terms is payable on or after,
the termination of such party's primary employment or
affiliation with the institution or holding company; and
(ii) Is received on or after, or is made in contemplation of,
any of the following events:
(A) The insolvency (or similar event) of the insured
depository institution which is making the payment or
bankruptcy or insolvency (or similar event) of the depository
institution holding company which is making the payment; or
(B) The appointment of any conservator or receiver for such
insured depository institution; or
(C) determination by the insured depository institutions or
depository institution holding company's appropriate
federal banking agency, respectively, that the insured
depository institution or depository institution holding
company is in a troubled condition, as defined in the
applicable regulations of ...